Citation Nr: 9808596
Decision Date: 03/19/98 Archive Date: 04/02/98
DOCKET NO. 96-48 394 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUES
1. Entitlement to an increased (compensable) evaluation for
a left shoulder disability.
2. Entitlement to an increased (compensable) evaluation for
a low back disability.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jeanne Schlegel, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1987 to August
1991.
REMAND
Following a review of the record, the Board has determined
that additional evidentiary development is warranted as to
both of the issues presented.
Private medical records on file dated in 1994 and 1995
pertain largely to the veteran’s right shoulder problems.
Upon VA examination conducted in March 1996, the focus was
the veteran’s right shoulder and left knee problems. There
were no clinical findings made which pertained to the left
shoulder, nor was any pertinent diagnosis made. Accordingly,
the Board believes that an examination of the left shoulder
should be afforded for the veteran in order for him to
identify his current symptomatology, and so that the current
nature and severity of that disability may be addressed for
the record.
The veteran presented testimony hearings held at a VA
Regional Office (RO) in November 1996, and at a Board hearing
held in February 1996. At the hearings, the veteran
indicated that he was experiencing symptoms which included
pain upon motion, and loss of strength.
The Board is not required, pursuant to its duty to assist, to
remand a claim solely because of the passage of time since
the preparation of an otherwise adequate examination report.
An exception to this general rule exists to the extent that
the veteran asserts that the disability in question has
undergone an increase in severity since the time of the last
examination. VA O.G.C. Prec. Op. 11-95, slip op. at 10 (Apr.
7, 1995). In this case, it appears that the veteran has so
asserted, given the fact that the testimony as to the
veteran’s current symptomatology included complaints not made
upon VA examination conducted in March 1996. Accordingly,
the Board believes that an examination of the low back should
also be afforded for the veteran in order for him to identify
his current symptomatology, and so that the current nature
and severity of that disability may be addressed for the
record.
Where the record before the Board is inadequate to render a
fully informed decision, a remand to the RO is required in
order to fulfill its statutory duty to assist the appellant
to develop the facts pertinent to the claim. Ascherl v.
Brown, 4 Vet. App. 371, 377 (1993). Accordingly, the case is
REMANDED to RO for the following development:
1. The veteran should be contacted and
requested to furnish a complete list of
all medical personnel and facilities from
which he has received treatment for his
service connected left shoulder and low
back disabilities since March 1996.
After obtaining the appropriate releases
from the veteran where necessary, the
health care providers should be contacted
and requested to provide copies of all
treatment records in their possession
pertaining to the veteran. If these
records are unavailable or are duplicates
of those already on file, that fact
should be annotated in the claims folder.
Any available records should be
associated with the claims folder.
2. The RO should schedule the veteran
for a VA examination by an appropriate
specialist in order to determine the
nature and severity of his left shoulder
and low back disabilities. The examiner
is requested to adequately summarize the
relevant history, including relevant
treatment and previous diagnoses, as well
as all current objective clinical
findings and subjective complaints. All
necessary tests and studies should be
done, including motor, sensory, range of
motion and strength testing, and
appropriate X-ray studies. The examiner
should also make detailed findings as to
each disability regarding the following:
any movement irregularity, evidence of
weakened movement fatigability or
incoordination, pain on movement,
swelling, deformity, atrophy,
instability, or interference with weight-
bearing. Functional impairment
attributable to each disability with
respect to the veteran's employment or
daily activities should be noted. Upon
evaluation, subjective complaints and
objective manifestations of pain and
tenderness evidenced by visible behavior
should be reported. The examiner should
also express an opinion whether any
limitation of motion of the low back is
“slight,” “moderate,” or “severe.”
3. Following completion of the foregoing
development, the RO should review the
veteran's claims folder and determine
whether any further evidentiary
development is necessary. If any
development requested above is found to
be incomplete, including compliance with
the Board's VA examination instructions,
corrective action should be taken at that
time.
4. Thereafter, the RO should again
review the claims, to the extent
necessary, and then return the case to
this Board in accordance with the usual
appellate procedures, reflecting
consideration, among other things, of the
provisions of 38 C.F.R. §§ 4.40 and 4.45
(1997) and of the holding in DeLuca v.
Brown, 8 Vet. App. 202 (1995).
Thereafter, if the benefits sought are not granted, a
supplemental statement of the case should be issued to the
veteran and his representative and they should be provided an
opportunity to respond. Subsequently, the claims folder
should be returned to the Board for further review, if
necessary. By this action, the Board intimates no opinion
legal or factual, as to the ultimate disposition warranted as
to these specific issues.
While this case is in remand status, the veteran is free to
submit additional evidence and argument on the question at
issue. See Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
John E. Ormond, Jr.
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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